A suit for partition is not bad for partial partition if the property left out is not part of the property held jointly by the plaintiff and the defendant.

1. This appeal arises out of a suit for possession by partition of a house mentioned in the plaint. The suit was contested by the defendant-appellant inter-alia on the ground that the suit was bade for partial partition. The trial Court framed the following issues on the basis of the pleadings of the parties:-

1. Whether the suit property originally belonged to Bishna Mal, the brother of Kishna Mal?

2 Whether the suit property is joint of the parties and they have shares in it?

3. Whether the suit is property valued for the purposes of jurisdiction and court-fees?

4. Whether the suit is within time

5. Whether the suit is bad for partial partition?

6. Whether a similar suit had been dismissed? If so, its effect?

7. Whether the defendant is owner by adverse possession?

8. Whether the defendant has effected improvements, if so, to what amount and with what effect? 9. Relief. The trial Court decreed the suit and an appeal from the judgment and decree of the trial Court at the instance of the defendant met the same fate and hence this second appeal.2. The contention raised by the learned counsel for the appellant is that the suit is bad for partial partition. He has assailed the findings of the Courts below in this respect of two grounds- (1) that the Courts below have erred in holding that the house inherited by the plaintiff and the defendant from their grandfather Kishna Mal is in the exclusive ownership of the plaintiff as a result of his having purchased the other half share belonging to the defendant vide sale-deed Exhibit P-1. Since it is not a registered document so it could not have been admitted in evidence to establish the transfer of title of the defendants father in the said house to the plaintiff, and (2) that the decision of the Court in the earlier suit on the issue relating to the suit being bad for partial partition would operate as res judicata regarding the same issue in the present suit.3. Learned counsel for the respondent has, however, urged that the suit is not bad for partial partition because the suit relates to a certain house inherited by the parties from Bishna Mal who is brother of their grandfather and no portion of the property so inherited has been left our from the present suit and so there is no question of suit being bad for partial partition. He maintains that it is not necessary that any other property held jointly by the parties is to be inclined in the present suit for partition.4. To appreciate the points raised by the counsel for the appellant, it would be necessary to notice the fact that the plaintiff filed a suit for possession by partition of this very property in which he failed to include the property alleged to be joint and the same property has been left out of th present suit as well. When after the evidence was led in the said previous suit and it was at the argument stage, the present plaintiff made an application for permission to withdraw suit with the permission to file a fresh suit on the same cause of action. The trial Court granted permission to withdraw the suit with the liberty to file a fresh one on the same cause of action and that portion of the said judgment Exhibit D.2 reads- "it may be stated here that it was the defence objection in the written statement that the suit was for partial partition and, therefore, not competent. Now both the parties agree to this. It is well settled law that a suit for partition should embrace all the joint properties of the parties and without that the suit has to be dismissed. In these circumstances, the plaintiff can always bring a fresh suit for partition by including all properties that were joint. In these circumstances, I hold that there is a formal defect in the suit which would entail its dismissal and, therefore, acting under Order 23, Rule 1, Civil P. C. , I grant the plaintiff permission to file a new suit on the same cause of action. The present suit is dismissed as withdrawn and the parties are left to bear their o